The Supreme Court has finally struck down the notorious Section 66A of the Information Technology Act, often misused by police against innocent citizens exercising free speech on social media.
Added to the IT Act, 2000, by an amendment in 2008, the provision had gained infamy not just for blatant misuse but also for the “chilling effect” it had on freedom of speech and expression, particularly on the internet.
The verdict is important for more than one reason. First, it has come at a time when there is a general atmosphere of despondency and despair following recent state actions that gave an impression of intolerance towards dissent. The SC move is like a breath of fresh air.
Second, it instills confidence among citizens that they have the judiciary to safeguard their fundamental rights. The Supreme Court of 2015 is much more mature and confident than it was in the 1970s when it notoriously ruled in ADM Jabalpur versus Shivakant Shukla that right to life and liberty can be suspended during Emergency, only to regret it later.
Third, the law was too vague to survive a constitutional challenge. It suffered from the vice of non-application of mind. It prescribed a maximum punishment of three-year jail with fine for sending information that is "grossly offensive" or has "menacing character" and for sending e-mails causing "annoyance or "inconvenience" to the recipient. But none of these expressions was defined in the law making it prone to misuse by the police.
“If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or “menacing” are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence,” the apex court noted.
The top court has rightly refused to buy the government’s assurance that it would not misuse the law. The validity of a law can’t be left to be judged by the level of benevolence of the executive which may come and go. It must be tested on the touchstones of well-established constitutional principles.
By holding that free speech guaranteed to citizens under Article 19(1)(a) can be restricted only on the grounds mentioned in Article 19(2) of the Constitution, the SC has once again asserted its power of judicial review and reminded the legislature and the executive of their limits in making and enforcing laws that can potentially violate fundamental rights.
Finally, a word of caution for cyber zealots! Section 66A is gone. But it doesn’t mean it’s a free-for-all in the cyber space. One is free to discuss any issue and indulge in advocacy. But when such discussion or advocacy reaches the level of incitement to an offence, criminal law kicks in. There are ample such provisions in the Indian Penal Code.